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Income Tax Appellate Tribunal, INDORE BENCH, INDORE
Before: HONBLE KUL BHARAT & HONBLE MANISH BORAD
arising out of the order u/s 143(3) dated 21.03.2013 framed by ITO- 2(1), Bhopal.
The assessee has raised following grounds of appeal; “1. That the Learned CIT(Appeals) has erred in law and on facts in confirming the addition of Rs.25,19,000/- to the total income of the appellant as Long Term Capital Gain.
2. That the Learned CIT(Appeals) and A.O are arbitrary, fundamentally incorrect and without appreciating the contents of the sale deed of the property, which clearly states that the father of the appellant was the sole and absolute owner of the property, and the appellant was merely a signatory o the sale deed as son of the transferor, to avoid any future claim against the property transferred through such sale deed.
That the appellant reserves the right to add, alter or amend the grounds of appeal before the appeal is decided, with the permission of Honourable Bench..”
3. Briefly stated facts as culled out from the records are that the assessee is an individual and declared total income of Rs.4,86,240/- in the return of income filed on 12.07.2010 for Assessment Year 2010-11. The return was selected for scrutiny and notice u/s 143(2) dated02.09.2011 duly served upon the assessee. The assessment was completed u/s 143(3) of the Act after making addition of 2 D.N. Ramesh ITANo 959/Ind/2016 Rs.25,19,000/- on account of long term capital gain. Aggrieved assessee preferred an appeal before Ld. CIT(A) but could not succeed.
4. Aggrieved assessee is now in appeal before the tribunal raising sole ground challenging the finding of Ld. CIT(A) confirming the addition for Long Term Capital at Rs.25,19,000/-.
During the course of hearing Ld. Counsel for the assessee referred to certain facts material for the adjudication of the issued raised before us. While arguing he referred to the finding of Ld. CIT(A) and mentioned that Ld. CIT(A) has not stated the facts correctly in the appellate order and matters needs to be set aside to the file of Ld. CIT(A) for afresh adjudication.
Per contra Ld. Departmental Representative though did not opposed to the request made by Ld. Counsel for the assessee to set aside the issue to the file of Ld. CIT(A), but also submitted that the assessee has claimed that the property came in his hands in the capacity as legal heir. He submitted that as per Hindu Succession Act the property should have been divided amongst the legal heirs and the capital gain should have been accordingly offered in the D.N. Ramesh ITANo 959/Ind/2016 hands of all of them. This aspect needs to be examined at the end of Ld. CIT(A) during the set aside proceedings.
We have heard rival contentions and perused the records placed before us. The assessee has raised three grounds of appeals but the sole contention is against the addition of Rs.25,19,000/- for not disclosing Long Term Capital Gain in the Income Tax return. During the course of hearing Ld. Counsel for the assessee pointed out that the facts narrated by Ld. CIT(A) are not correct which have its bearing on the decision and matter needs to be set aside for deciding afresh. Ld. Departmental Representative referred to Hindu Succession Act contending that all the legal heir should offer their share to income in their respective income tax returns.
8. Further from going through the finding of Ld. CIT(A) we find that the direction of Ld.CIT(A) of furnishing copy of return filed by the seller offering the tax on the aforesaid capital gain was never submitted even after granting various opportunities.
9. We therefore in the given facts and circumstances of the case direct the Ld. CIT(A) to decide all the issues raised before us in this appeal afresh after considering various contentions made by both the 4 D.N. Ramesh ITANo 959/Ind/2016 parties as referred above in the preceding paras and after giving reasonable opportunity of being heard to the assessee and decide the issue. We also direct the assessee to remain vigilant to the notice of hearing and submit the required information as called for by Ld. CIT(A) and should not take adjournment unless otherwise required for reasonable cause.
In the result appeal of the assessee is allowed for statistical purpose.
The order pronounced in the open Court on 11.10.2019.